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Knight v. Bardwell

DECEMBER 31, 1963.

HELEN KNIGHT AND RAYMOND WILLIS, JR., PLAINTIFFS-APPELLEES,

v.

WILLIAM U. BARDWELL, AS EXECUTOR UNDER THE WILL AND CODICILS OF MAUD M. BAYLESS, DECEASED, AND CHRISTIAN SCIENCE PLEASANT VIEW HOME OF CONCORD, NEW HAMPSHIRE, A CORPORATE BODY, DEFENDANTS. CHRISTIAN SCIENCE PLEASANT VIEW HOME OF CONCORD, NEW HAMPSHIRE, A CORPORATE BODY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 29, 1964.

Plaintiffs, step-grandchildren of the testator, Maud M. Bayless, were designated as beneficiaries to receive 150 shares each of Texaco stock under her will and codicil thereto. They filed a construction suit to determine the proper distribution of 900 additional shares which had resulted from two stock splits before testator's death, one having occurred after the execution of the will and the other after the codicil.

From a decree awarding all the shares to the grandchildren, an appeal has been taken by the residuary legatee, the Christian Science Pleasant View Home of Concord, New Hampshire, a charitable corporation. *fn1 The grandchildren have cross-appealed from an order denying their petition for allowance of attorneys' fees and costs. There is no dispute as to the facts. They appear from undenied pleadings and from a voluminous stipulation of facts filed in the trial court.

The principal issue is whether an intention to include the shares resulting from either or both splits in the bequests to the grandchildren is evidenced by the testamentary instruments themselves, or in the context of surrounding circumstances.

Testator was the third wife of Benjamin Bayless, from whom she received 100 shares of Texaco stock as a gift some time before his death in 1920. By that time the number of these shares had been increased to 400 by virtue of a split in 1919.

As a result of trading on the market and receiving stock dividends, testator's ownership of Texaco stock varied over the years. At the time of executing her will in 1950, she owned 1,040 shares. Thereafter in 1951, there was a two-for-one split, and thus, at the date of the first codicil in 1952, she held 2,100 shares. At the time of another two-for-one split in 1956, the testator owned 2,000 shares and continued to hold the resulting 4,000 shares until her death later that year at the age of 91.

Of the 16 testamentary instruments executed by Mrs. Bayless or drawn at her request but not executed, only four were admitted to probate:

(1) Testator's last will, executed on July 14, 1950, included a bequest of 300 shares of Texaco stock in these words:

Whereas, I have in my safety deposit box in the First National Bank and Trust Company of Evanston, Illinois, among other securities, three hundred (300) shares of the Texas Corporation, which securities came to me from my husband, Benjamin Bayless, and which, other than the Greenwood Inn situated in Evanston, Illinois, comprised a considerable portion of the liquid estate at the time of his death and which, at the present time (July, 1950) are worth approximately $20,000; and

Whereas, the will of my husband, Benjamin Bayless, was set aside as a result of action taken by his son, George Wood Bayless, and his wife, and a new contract was made whereby I have heretofore released to said George Wood Bayless, at his request, all my right, title and interest in and to said Greenwood Inn, except such as according to the contract and also by the original will of my husband, I have by way of annuity; and

Whereas, my deceased husband's granddaughter, Wilhelmina C. Bayless, his only other heir, since deceased without issue, was amply provided for by the terms of his will and by the terms of a subsequent contract relating thereto;

Therefore, without any obligation on my part but because of my desire to do as I would wish to be done by, I hereby give, devise and bequeath unto Wilhelmina B. Willis, *fn2 daughter of my said deceased husband, the three hundred (300) shares of said Texas Corporation. In case the said Wilhelmina B. Willis should die before my death, then I give, devise and bequeath the said shares of stock to such of her two children as may survive me, share and share alike. Certificates for said three hundred (300) shares will be found in an envelope, properly marked, in said safe deposit box.

The residue was left to the Home for the purpose of "increasing the facilities for the care of aged professional or worthy non-professional workers in the cause of Christian Science."

(2) Following the death of their mother, the plaintiffs were mentioned by name in testator's first codicil which was executed on May 1, 1952, and contained the following language relating to their bequest:

In the second provision of my Will I bequeathed three hundred shares of the capital stock of the Texas Corporation unto Wilhelmina B. Willis, the daughter of my deceased husband, Benjamin Bayless, or, in case of her prior decease, to such of her children as might survive me and related my reasons for such legacy. The said Wilhelmina B. Willis is deceased and left her surviving Helen Knight, her daughter and Raymond Willis, Jr., her son. My attitude toward the two grandchildren of my deceased husband has not changed since I signed my Will July 14, 1950, and out of love for my husband I give one hundred and fifty shares of the capital stock of the Texas Corporation as constituted when my will and codicil become effective unto said Helen Knight and an equal number of said shares of the Texas Corporation stock unto said Raymond Willis, Jr.

To the language of the will giving $5,000 to the First Church of Christ, Scientist, of Evanston, Illinois for the "wise and rightful expansion, in Evanston or elsewhere, of the cause of Christian Science, as taught by Mary Baker Eddy" was added the phrase, "by which I have lived and been blessed for fifty years."

(3) The second codicil of October 22, 1952, directed that taxes be paid out of the residue.

(4) The third codicil of February 4, 1956, added an in terrorem clause which will be ...


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